Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

The Odyssey of the Regulatory State: From a “Thin” Monomorphic Concept to a “Thick” and Polymorphic Concept

This article assesses the “odyssey” of the regulatory state from a mere American thin and monomorphic concept to a global, thick and polymorphic concept that captures some of the more important features of the capitalist–democratic state. The burgeoning literature on the regulatory state presents a confusing number of images and characterizations that are increasingly conflicting, and it too often presents a monomorphic conception of the regulatory state. The article suggests that we need to define the regulatory state rather than merely characterizing it. And we need to do so in a manner that will allow us to move beyond the specific institutional features of a certain era, nation, region, or sector. Rather than contrasting regulation with distribution and redistribution, and contrasting the regulatory state with other forms of state, I treat the regulatory state as one morph of the polymorphic capitalist state, a morph that may help constitute other morphs (such as the welfare state and the developmental state) instead of replacing them. This in turn may help remove the artificial walls between the regulatory scholarly community and other social scientists, and promote more fruitful social science.     

Foucault on “Avowal”: Theatres of Truth from Homer to Modern Psychology

FOUCAULT, MICHEL. 2014 . Wrong‐Doing, Truth‐Telling: The Function of Avowal in Justice . Ed. Fabienne Brion and Bernard Harcourt, trans. Stephen Sawyer. Chicago, IL: University of Chicago Press. Cloth $35.00, E‐book $7.00 to $30.00. The publication of a previously unknown set of lectures delivered by Foucault in 1981 at Louvain's criminology institute constitutes a major revelation for legal and criminological scholars (Wrong‐Doing, Truth‐Telling: The Function of Avowal in Justice, 2014). The lecture material includes an extended discussion of the techniques used by Oedipus to establish the truth of his familial crime, a reflection on the beginnings of the inquisitorial justice system (which Foucault here argues paved the way for the scientific revolution), and analyses of contemporary forensic confessions. Throughout these meticulously edited lectures, the scientific and philosophical “inquiries” that revolutionized modern European knowledges are shown to be rooted in embodied practices of confession and avowal that go back to ancient Greece.     

“Scared Straight”: Ideology and the media

One of the more widely publicized presentations about crime is “Scared Straight,” a documentary about a program in which juveniles visit inmates in a New Jersey penitentiary. It is the contention of this article that this film and the accompanying media coverage of it convey an ideology message concerning crime and criminals. Crime is presented as a matter of individual choice that has little relationship to any social variables. Criminals are portrayed in a one-dimensional manner as evil, vicious, and barely human. The documentary is a success because these images of crime and criminals conform to existing stereotypes. Based on these distorted images, the film and media coverage “market” a simplistic solution to crime that is compatible with their presentation of the crime problem.     

Alcohol and rape: An “economics-of-crime” perspective

Using a panel of state-level data over the years 1982–2000, this study explores the potential relationship between alcohol policy, alcohol consumption, and rape by considering a number of theoretical and methodological issues. First, the potential relationship is examined in the context of an economics-of-crime model, controlling for various deterrence and opportunity cost variables. Second, unlike most studies, consumption of liquor and wine are considered as well as consumption of beer. A third focus is on the potential endogeneity of alcohol consumption. A fourth consideration dictates the focus on rape-rates rather than other violent crime rates. Several studies have discovered a tendency for relatively high alcohol consumption by both offenders and victims. Since rape victims are virtually all female, and at least some alcohol policy variables appear to have differential impacts on females and heavy-drinking males, an examination of policy impacts for rape-rates, unlike other types of violent crime, can suggest the nature of the alcohol-consumption–violence relationship. The empirical results support an “alcohol-increases-potential-victims-vulnerability” hypothesis. In the context of the economic theory of crime, this lowers the expected cost of rape to potential offenders and raises rape-rates. Tests for endogeneity of alcohol consumption and resulting simultaneous equation estimates reinforce this implication because they suggest that potential victims respond to relatively high rape-rates by reducing alcohol consumption.     

House Party Switchers and Committee Assignments: Who Gets “What,When, How?”

What are the political consequences for members of Congress who switch parties? Roll‐call and electoral consequences of congressional party switching have been studied, but other implications of party defections have yet to be systematically explored. In this article, I examine the committee assignments of House party switchers and argue that party leaders seek to reward members of the opposing party who join their ranks. Using committee assignment data from the 94th House (1975–76) through the 107th House (2001–02), I show that party switchers are more likely than nonswitchers to be the beneficiaries of violations of the seniority norm. The findings from this article are of interest to students of political parties and legislative institutions, and fill a gap in the literature on party switching. When you joined the Republican Conference on August 6, 1995, the elected leadership …determined that your accumulated seniority in the Congress would be credited when you joined the Republican Conference…. Therefore, the Republican Steering Committee's Seniority List ranks you nineteenth in overall conference seniority and designates May 22, 1980, as the beginning of your tenure in the House for purposes of Republican seniority. Letter from Speaker Dennis Hastert to party switcher Billy Tauzin, April 4, 2000.¹     

“Critical Legal Histories Revisited”: A Response

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.